Yesterday, the Obama administration invoked executive privilege to prevent the release of certain documents to Congress related to Operation Fast and Furious, the arms-trafficking sting gone awry that came to light last year. (As we've detailed, federal agents lost track of hundreds of guns sold to suspected gun smugglers, many of which later turned up at crime scenes in Mexico).

The fall-out from the failed operation has been an ongoing battle between Attorney General Eric Holder and congressional Republicans, in particular Rep. Darrell Issa, R-Calif., chair of the House Committee on Oversight and Government Reform. Issa wants documents related to the Department of Justice's investigation of the operation.

The committee voted yesterday to recommend that Holder be held in contempt of Congress for not turning over some documents. Holder says that his office has already released thousands of documents, and that the others that Issa wants are internal communications protected by executive privilege.

In the midst of all this back-and-forth, we lay out exactly what the executive privilege is, and what it means in this case.

So what is executive privilege?

The president can invoke executive privilege in order to withhold some internal executive branch communications from the other branches of government. The privilege is based on the separation of powers between the branches.

Executive privilege has been invoked since the U.S.'s early days but isn't in the Constitution. It was only in 1974, when Richard Nixon tried to prevent the release of White House tapes during the Watergate investigation, that the Supreme Court upheld its constitutionality, and set some parameters for it. The Court ruled that no claim on executive privilege is absolute, and can also be overcome if evidence is needed in a criminal trial. (For a full legal history, see this report from the Congressional Research Service.)

So what does it usually cover?

Various administrations have set their own policies as to when they can invoke the privilege. (The Washington Post has a handy timeline showing when presidents have used it.)

Bill Clinton used them a lot, 14 times during his presidency. In 1998, his attempt to keep White House aides from testifying about the Monica Lewinsky scandal was struck down, the first time since Nixon that executive privilege was overruled in court. George W. Bush invoked the privilege six times, not always successfully.

Legal challenges have established two general categories of executive privilege: presidential communications and deliberative process.

The presidential communications privilege applies to communications involving the president or his staff that immediately pertain to the president's decision-making process. The idea, according to Mark Rozell, a professor at George Mason University, and author of a book on executive privilege, is that "the president should have the right to candid advice without fear of public disclosure."

Deliberative process involves a broader scope of executive branch activity: discussions involving White House staff or within other agencies on legal or policy decisions that don't necessarily involve the president or his immediate advisers. Again, the argument is that government officials need to feel like they can talk honestly. The deliberative process privilege, Rozell says, is generally easier to challenge than a claim of presidential communications privilege.

What is Obama's view on executive privilege?

In 2007, in an interview with CNN, then-Sen. Obama criticized "a tendency on the part of [the Bush] administration to try to hide behind executive privilege every time there's something a little shaky that's taking place." During his presidential campaign, Obama said that executive privilege "generally depends on the involvement of the president and the White House," referring, presumably, to the narrower, presidential communications privilege.

Yesterday, the White House emphasized that this was the first time Obama has invoked the privilege.

So what is Holder trying to keep secret?

Holder asked Obama to invoke executive privilege over documents having to do with "the Department's deliberative process concerning how to respond to congressional and related media inquiries into that operation." In other words, Holder is saying the documents don't deal with the government's actual response to Fast and Furious.

The letter doesn't explicitly mention presidential communications. So, contrary to a few Republican congressmen's claims, the communications could be just between Justice Department officials and not include anybody at the White House itself.

Holder could be voted in contempt of Congress by the Republican-controlled House. But if he is, it's not clear Holder would be forced to do anything. Congress could file a lawsuit against him or try to arrest or fine him to force him to comply. But that's a long shot. Disputes over executive privilege are usually settled with a compromise between the executive branch and legislatures.

In 2008, two of President Bush's advisers were held in contempt of Congress for refusing to comply with an inquiry into the firing of several U.S. attorneys by citing executive privilege. This led to a stand-off, with the attorney general telling the local U.S. attorney not to enforce the contempt citation. Eventually, more than a year later, a deal was reached with Congress and the issue was dropped.

If it did go to court, the deliberative process privilege might not hold up. In 2004, Bush asserted presidential communications privilege over Clinton administration documents relating to pardons. A court ruled that they didn't immediately involve the president and would be protected, "if at all" by the deliberative process privilege. The court then ruled that they weren't protected under that privilege — and the Pardon Attorney had to turn over more than 4,000 documents.

25 comments

Where to begin … describing Operation Fast and Furious as an “arms-trafficking sting gone awry” is really stretch. I mean, if it were a “sting” operation, why weren’t arrests made? Why did the ATF agents who were surveying the smugglers repeatedly told by DOJ/ATF brass to only observe and not make arrests not only at the point of sale at the US gun stores but all the way down to the border where they went into Mexico with their contraband? Even when gun store owners were calling the ATF and reporting suspicious transactions, the ATF told the sellers not to worry, just sell them whatever they want. If this were some attempt to track guns back to the cartels, why weren’t Mexican Law Enforcement Agencies in on it … don’t you think it’s kind of revealing that Mexican LEO’s have been so up in arms about this operation? How did Holder and Co. ever expect to “track” these weapons once the left the US, if they weren’t working with the Mexican authorities?

Why would the administration claim “executive privilege” on these communications when they have been saying over and over that no one outside of the Justice Department had and involvement or even knowledge of Operation Fast and Furious until congress started asking questions?

Its not a good sign that just your first paragraph is so choked full of half truths. Looks to me like you were in such a hurry to turn this into nothing more than a partisan political debate that you really didn’t look to hard at any of the evidence or blatantly false claims made by Holder.

It is worth noting that national security has generally been regarded as the most central (though not sole) concern when it comes to claims of national security (and so probably forms the strongest basis for a claim).

As Patrick Henry noted, we wanted to focus on the history and precedent for executive privilege claims. That’s what all the news this week is about—not developments in the actual investigation into Fast and Furious.

“What if there were in-depth but secret WH cooperation with the Mexican government, forming a plausible national security argument? Would the privilege apply?”

It is possible for national security to apply here. AFAIK, the administration hasn’t made such a claim. If they did, people would probably want at least some idea why. Executive privilege is not that well defined so, unless he was refusing to turn over documents to a court with a judge who would rule, it isn’t clear how well he would need to justify such a claim. In the end, he would probably need to satisfy enough people that it didn’t cause too much damage politically.

Well this is what you get when you allow your guy to exercise power then cry foul when the next batter does the same. It is unfortunate the populace doesn’t apply some critical thinking and realize the party in power lays the ground work for the change in power and they will suffer the consequences.

Namecalling aside, Steve is absolutely right. The very fact that anyone in governments considers keeping non-mission-critical secrets stands in direct opposition to a functioning democracy.

And when they demand further surveillance of us and our activities while dismissing any accountability for themselves…?

Well, let’s just quote Douglas Adams that, “Anyone who is capable of getting themselves made President should on no account be allowed to do the job.” Feel free to substitute any office you prefer.

I’m not advocating violence, but I’ve been told that the ancient Athenians filled government positions by lottery among its citizens, with no right to refuse. At the end of their terms, each was brought up on trial for his actions, with fines, jail time, and execution being proportional punishments for failing to do the job or doing it poorly.

The more I think about it, the more I’d rather see these people set before a jury than watch them campaign. And I’d bet few Presidents would be willing to say, “oh, that’s a secret,” without a damned good reason if they knew the rest of their lives might be on the line when they leave office.

Apologies to anyone offended by my “name calling.” I prefer to think of it as simply “colorful,” but your mileage may definitely vary.

John has a delightful idea: choose our Executive by lot—we certainly couldn’t do much worse than the collection of power-seekers and charlatans who are running this mess currently and we’d probably do a lot better if there were mandatory “truth commissions” or some other sort of review, with penalties, as they leave office.

Maybe when the US has its own Tahrir Square moment, we can come up with something like that to replace the sordid snakepit we have in place at the moment.

If you look closely at the goals of this radical 60’s administration and it’s Chicago thug bodyguards (AKA czars) you would realize that fast & furious is simply step one in the process of implementing Marxism in a country you want to take over; ie remove firearms from the hands of the citizenry. Yes you try to do it sub rosa, but then when whistle-blowers show up you start with the blame game (Bush did it and we just continued it) and continue with more lies (we didn’t know about it but we aren’t interested in finding out who did or punishing anybody for it)! You have to (reluctantly) stop it when Congress becomes aware of it if only because if any more patriotic Americans get killed using F & F assault weapons you might find a lynch mob showing up at your door. Since your original purpose, that of causing a hue and cry to get the assault weapons ban re-instated has failed (and that’s what is meant by F & F being a “failed operation”), the only thing you can do now is stall until after the election and hope the true purpose of F & F does not become widely known. Because if it does, a lot of administration officials are going to be sweating out criminal indictments, not just civil actions to answer for! Because when you use the power of the government to knowingly transfer thousands of squad level firearms, including .50 caliber machine guns to enemies of the state, any rational person can foresee that those weapons will be used to kill or injure innocent people. When you turn those weapons over to the drug cartels with NO provision for tracking or retrieving them you certainly can’t claim any legitimate purpose for the operation!
Watergate was a schoolyard prank compared to F & F where hundreds of innocent Mexican citizens and 2 American heroes (so far) have been killed.
Once the President claimed executive privilege Pandora’s box was opened wide and will not close until justice is done. Because Obama wouldn’t throw Holder under the bus we know 2 things: he ordered F & F or he participated in the coverup.

Let me paraphrase Lloyd Bentsen when I say that I lived through the 60s, I knew the 60s, the 60s were a friend of mine. Believe me, the Obama Administration is no 60s radical Administration.

I mean, really. I’m afraid you wouldn’t know Marxism if it came up and piddled on your leg. Barack Obama is about as Marxist as Harpo. Do you think a “Marxist” would have bailed out the banks and given us the dog’s breakfast of a health system in ACA, just to name a couple of examples? Seriously?

A Marxist would have nationalized the freaking banks, clapped the cheeseballs running them into irons, and put them on trial for the crimes against humanity that they surely have committed. Hell, a halfway decent populist would have done that. A Marxist would have given us a National Health Service _a la_ the UK or at least a Canadian-style single payer system.

The rest of the industrialized world laughs at us for the retrograde system of privatized gain and socialized risk that we laughingly call an economy.

Please. As Bill Maher, a loudmouth I am loath to quote, put it, if Obama’s a Marxist, then shouldn’t I have at least gotten something out of the deal?

@Cora (and Patrick Henry): Sorry, but your respective responses to Mike H do not cut it. Your description of it as an “arms-trafficking sting gone awry” indicates that you are just one of the countless journalists who have basically ignored this story until the Holder contempt vote popped up. If you had actually dug a bit deeper in the details, or had paid attention during the more than year-long proceedings by Issa’s panel, you would have already known that the operation did not “go awry.” Actually, it was successful. There is already plenty of documents and testimony out there that demonstrates that. It went exactly as the DoJ planned… until Agent Terry was gunned down.

I have been impressed with what I’ve seen so far with ProPublica. Please, avoid the intellectual sloth that characterizes most of the MSM.

“Executive privilege” based on the desperate retreat of Sly Richard after his federal crimes and misdemeanors? HAH!!!
Obummer has met his Waterloo, if he ever really even had his own plan beyond collecting bribes and aiding and abetting in the accomplishment with escape of the Bush criminal cabal. Obummer has aggressive genocidal wars going in at least a dozen different countries of innocent people , and God has NO REASON to grant mercy on the souls of most all Americans because of it. The pope is NO EXCUSE.

Why hasn’t anyone asked or wondered why Holder and the white house refuse to turn over to congress the “Fast and Furious” documents? Could it be that they are trying to protect some of our folks working drug undercover in Mexico? Sometimes the obvious escapes notice.

@Cora (& Patrick Henry) I am in agreement of Terrence & Mike H. This article doesn’t cut the standard fairly. Agent Terry was gunned down and hundreds unknown Mexican citizens as a result of this messed up idea. A .50 caliber sniper rifle isn’t the same thing as .22 hand gun. That is professional grade killing weapon. Its not designed for target practice. Its a killing weapon. Let the truth come out and pennies fall where they will.

Nathan Miller book states 233 were investigated
Haynes Johnson states 138 were—charged—indicted—found guilty—investigated

p.s.—Newt and Gang spent $110,000,000-(GAO number) on Hearings and Investigations on Clinton
and one—(yes 1) person working for President Clinton was Found Guilty of a Felony. Evil man took few trips to ball games , etc. No quid pro quo per OIC –Pals doing what they had done for years—take pal to events. Pled guilty for did not have finances to fight the government and Smaltzsmear. His boss fought 37 such charges and was found not guilty on each charge.

I would appreciate anyone correcting what I write. I try to be honest but do make errors.

Steve, I didn’t mean to imply that I was offended. My experience has been that people take discussions with “colorful descriptions” less seriously. I suspect there’s a lot of people out there with really good ideas that don’t get any traction because they can’t help using a term like “Rethuglican” as if that’s somehow clever.

I’m less interested in election by lot (though you’re right, it can’t be worse than the Bushes, Clinton, Obama, or any of their campaign opponents—do these guys get recruited at bus stations or something?) than I am in making sure their terms are put under the microscope in the public eye. No “privilege” other than anonymity of advisors. Give them plenty of room to do their jobs, but force them to think twice when they invade a country on a flimsy pretext, irradiate and grope our privates, or sell the people out to some private company in a sweetheart deal.

“Why hasn’t anyone asked or wondered why Holder and the white house refuse to turn over to congress the “Fast and Furious” documents? Could it be that they are trying to protect some of our folks working drug undercover in Mexico? Sometimes the obvious escapes notice. “

It could be that they really do think they are the victims of a fishing expedition, or it could be there are hiding something. Either motivation might lead to you invoke executive privilege.

@Clarence Swinney Thank you so much. Sometime I feel that the revisionist historians within politics and the media have clouded every mind in this country. Your comment is a great testent to ProPublica. 1) it’s fact based, not editorial. 2) it’s civil, not inflammatory. Thank you for presenting information as it should be. Fact based and open to consideration.

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